28 June 2004

II. Government Power

The critical distinction between what actually happened in the Detainee Trilogy and what the media already has said (and no doubt will continue to say) is that no detainees were ordered set free. All that these decisions did was deny absolute, unfettered executive discretion short of a declaration of war. Instead, a detainee does have the due process right to challenge the justification for his/her detention unless Congress specifically strips a class of detainees of that right, presumably by suspension of the writ of habeas corpus.

The most critical language on the admittedly difficult (at least, in a given case) balance between justified and unjustified detention occurs in Hamdi:

[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. Because we live in a society in which "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty," our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.

Hamdi, slip op. at 23-24 (citations omitted; emphasis added). There is, or should be, more than a faint echo of the civil rights movement here. It bears consideration that J. Edgar Tutu believed that Malcolm X and Dr. Martin Luther King, Jr. were equally dangerous and both probably communists. All that these decisions require is a chance to be heard by an impartial decisionmaker; only the dissents would reach the actual merits (as discussed in part III of this rather extended diatribe). Padilla and Rasul reach the same conclusion, albeit not so clearly or elegantly. As Justice O'Connor continues:

But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

Id., slip op. at 25, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164–65 (1963) (a "suicide pact" case—see below)).

Even the most "liberal" member of the Court avoids reliance on substance. Instead, he restricts himself to procedural remedies:

Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners' claims.

Rasul, slip op. at 17. This is not the Court saying "Executive branch, you're out of line, release them now!" This is instead the Court saying "Executive branch, you might make a mistake here and there, so detainees have the right to present evidence that they're being wrongly held." And that is all.

I must vehemently disagree with the Perfesser's invocation of the out-of-context "suicide pact" language.

Apparently only the Supreme Court is "free to do whatever they want… without a check." If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution. It is nothing short of judicial tyrrany.

Exhibit A in opposition: the United States Sentencing Guidelines. As ill-founded as they are, and as poorly implemented as they are, I do not think them unconstitutional per se. Exhibit B in opposition: the Rules Enabling Act—both positively and negatively. Exhibit C in opposition: Snepp v. United States, in which the Supreme Court refused to second-guess the executive's designation of certain material as of national security interest despite some serious questions on motivations for that designation. I won't go on with further examples, but they exist in multitudes, as Justice O'Connor recognizes:

[T]he position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.

Hamdi, slip op. at 29. In other words, choose your poison: excessive court involvement or excessive deference to the executive. Given that the executive is poorly equipped to deal with retail instances and the courts are poorly equipped to deal with wholesale foreign policy, requiring a hearing seems the best—indeed, the only—balance. Tyranny happens when anyone is given absolute, unreviewable, unfettered discretion. As difficult as it may be to amend the Constitution, it's not impossible; and that is more than sufficient review of the Court. After all, getting the Court to review a decision isn't exactly easy, either, as Newdow and Cheney more than adequately demonstrate!

There are two major problems with the "suicide pact" arguments, both of which are fatal. Rhetorically, they fail when concerning an outsider's actions, because that's not suicide. An accurate assessment would be something like "the Constitution does not mandate refusal for self-defense." Suicide is something that one does to oneself; not taking steps to prevent someone else from assault is, by definition, not "suicide." If there is a "suicide" possible in this context, it is the denial of the rule of law in favor of unfettered personal discretion of executive-branch decisionmakers. Substantively, these arguments fail because the failure to defend is not inherently fatal. It might cause change; but then, change is a constant. The change might be unacceptable; but then, accidents of nature can cause unacceptable change, too.